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1.4: Cell Phone Ordinance Question and Model Answers to Texting Question

Instructions

  1. Review the cell phone ordinance rule and fact pattern.
  2. Read the Cell Phone Question #1 (Texting) Model Answers below. We included sample horizontal outlines after each question, but please focus mainly on the answers.
  3. Notice: Which model answer(s) do you like the most and why?

Note: Some of the model answers may be stronger than others. As you read and analyze them, try to decide which ones you think are stronger or weaker. And then try to identify what makes them stronger or weaker. And also try to identify what techniques or strategies you can borrow (or steal!) from them.

1. Cell Phone Usage Rule:

The City Ordinance for Cell Phone Usage or Text Messaging provides that it is a moving violation and unlawful to use a wireless communication device to talk or listen to another person on the telephone or to view, send, or compose an electronic message or engage other application software while operating a motor vehicle.

Fact Pattern:

April Jefferson (“Jefferson”) hopped in her new Ford Mustang convertible and headed downtown to meet her best friend for lunch. She placed her cell phone purse on the passenger seat, let down the top of her car, and started to drive north on Kansas Street. The weather was great, clear and sunny. Jefferson could not wait to meet her friend; she had not seen her in months.

Jefferson slowed down at a crosswalk because some kids were standing at the corner. She then picked up her phone to take a quick look at the directions to the restaurant. She left them visible on the phone because she did not want to get lost and risk being late. Realizing that she was not too far away from the restaurant, she sent her friend a text, typing “almost there.”

Jefferson noticed the voicemail message icon was lit on her phone. Once the kids crossed the street, she started driving and picked up the phone to check her voicemail message. She clicked on the “call voicemail” option and heard a couple of rings. The recording stated, “You have no new messages.” “That darn icon,” Jefferson thought. “It never seems to work right.” She tossed her phone back on the passenger seat.

Jefferson drove about 50 feet to the next intersection and heard a siren. There was a police officer right behind Jefferson, signaling for her to pull over to the curb. Jefferson pulled over immediately. Officer Talbot had been watching Jefferson use her cell phone and told Jefferson she violated the City’s new ordinance prohibiting cell phone use and texting while driving. Officer Talbot issued Jefferson three separate moving violations for: (1) texting, (2) viewing the driving directions, and (3) using the phone to listen to her voicemail.

Jefferson admits she used her phone but does not believe she violated the new law. Please advise whether Jefferson violated the City Ordinance with her conduct. Address each of the separate alleged moving violations.

*******************

*Source: Legal Analysis: 100 Exercises for Mastery, Practice for Every Law Student (Second Edition), p. 4, Hill, Cassandra L., Vukadin, Katherine T., Carolina Academic Press (2017).

2. Sample Answers

Model Answer #1 – Cell Phone Q1 – Texting

Jefferson probably violated the Cell Phone Ordinance when she texted her friend while she was in her car.

The issue is whether Jefferson’s actions constituted composing and sending an electronic message and whether she was operating a motor vehicle at the time.

According to the City Ordinance it is a moving violation and unlawful to use a wireless communication device to view, send, or compose an electronic message or engage other application software while operating a motor vehicle. 

In this case, it seems very clear that Jefferson composed and sent an electronic message when she typed and sent a message to her friend. It’s potentially less clear whether she was operating a motor vehicle at the time she did this. She was definitely in her car, which is undoubtedly a motor vehicle. The facts are a little bit unclear about what exactly she was doing with her car at the moment when she typed and sent her text. We know that she slowed the car down. And we know that once she saw the kids finish crossing the street, she “started driving.” So it’s possible that after slowing down, she came to a full stop before the kids finished crossing.

Nonetheless, the ordinance uses the phrase “operating” a motor vehicle. While driving a car would certainly seem to fall within the definition of “operating” a car, it’s less clear whether sitting in the driver’s seat of a stopped car while the engine is still running is still within the definition of “operating” a car. If Jefferson had stopped the car and shifted the gear to “Park” instead of “Drive,” then Jefferson might have a stronger argument about whether she was “operating” the car. Although one could still make a strong argument that even if the car is in Park mode, the driver is still operating it. 

Here, there are no facts indicating that Jefferson put the car into Park. So it’s fair to assume that if Jefferson brought the car to a full stop, she did so by pushing her foot on the brake. But even if she fully stopped the car using the brake, this is still an action conducted by Jefferson in connection with the car. And this would therefore seem to fit within the definition of “operating” a car. 

Additionally, if we assume the goal of the Cell Phone Ordinance is safety, then with regard to “operating” a motor vehicle, a foot on the brake seems like a situation that is relatively less safe since a foot can slip off, or a driver distracted by a cell phone could suddenly decide to lift their foot from the brake at the wrong moment. 

For all of these reasons, it seems safe to conclude that Jefferson did indeed violate the Cell Phone Ordinance by typing and sending a text to her friend while she was in her car, even if she did come to a full stop at the intersection.

OUTLINE: Model Answer #1 – Cell Phone Q1 – Texting

IssueRuleAnalysisConclusion
Jeff composed & sent e-mess while operating a motor vehicle?Violation =–view, send OR compose–e-message

–WHILE
–operating 







–a motor vehicle

typed + sent
text   ———>

was in the car  —>
–slowed down–saw kids cross–started driving–no facts that say she stopped–foot probably on the brake

–Mustang = car



Yes, violated this part

Yes, WHILE




Yes, was operating



Yes, a car

YES, violation of texting

Model Answer #2: Texting

Jefferson did not violate the Cell Phone Ordinance by texting while driving.

The question at hand is whether Jefferson was operating a motor vehicle at the moment she wrote and sent her text to her friend.

The rule in this case is based on the Cell Phone Ordinance which states that it is a moving violation and unlawful to use a wireless communication device to view, send, or compose an electronic message or engage other application software while operating a motor vehicle.

Jefferson clearly violated the texting while driving portion of the ordinance since the facts say that she typed and sent a text message, which matches with the ordinance’s prohibition on composing or sending an electronic message in connection with operating a motor vehicle.

However, it is not at all clear that Jefferson was operating a motor vehicle at the time that she sent her text message. The facts indicate that Jefferson slowed down as she approached the intersection. And then it says she started driving again. If she started driving again, it means she must have stopped driving just prior to that. And if she stopped driving, then it would seem that she was not operating her car (i.e., a motor vehicle) at the moment when she texted. 

Therefore, Jefferson did not violate the Cell Phone Ordinance when she texted while in her car.

OUTLINE: Model Answer #2 – Cell Phone Q1 – Texting

IssueRuleAnalysisConclusion
Jeff “operating” a m/v when she sent text?Violation =–view, send OR compose–e-message
OR
–engage other application software
–WHILE
–operating 



–a motor vehicle

typed + sent
text   ———>

was in the car  —>




–slowed down–started driving–must have stopped




Yes, violated this part

Yes, WHILE


NO, was not operating
Yes, a car




NO, not violation of texting

Model Answer #3: Texting

Jefferson did violate the new cell phone ordinance when she sent her friend a text message saying, “almost there.”

The ordinance makes it unlawful “to view, send, or compose an electronic message…while operating a motor vehicle.”

The key issues here are whether Jefferson composed or sent an electronic message and whether she was operating a motor vehicle while she did those actions.

Here, Jefferson clearly composed and then sent an electronic message when she wrote and sent her friend a text saying “almost there.” Additionally, she did this while operating a motor vehicle since the facts state that she slowed down at a crosswalk at that time. If Jefferson slowed down, that means the car was still in drive and her foot was at best on the brakes. 

For the reasons described above, it would seem that Jefferson’s text message was composed and sent while operating her motor vehicle and that therefore she did violate the new cell phone ordinance with her text.

OUTLINE: Model Answer #3 – Cell Phone Q1 – Texting

IssueRuleAnalysisConclusion
1) composed or sent e-mess?



2) while operating a motor vehicle?
Violation =–view, send OR compose–e-message

–WHILE
–operating 


–a motor vehicle

typed + sent
text   ———>



–slowed down–car still in drive–foot still on brakes



Yes, violated this part




Yes, was operating



YES, violation of ordinance

Model Answer #4 – Texting

Jefferson definitely violated the law when she texted her friend. 

The issue is whether she wrote and sent a text message in the car and whether she was driving at the time she wrote and sent the text message.

  The statute provides that it is a moving violation to do any of the following while operating a motor vehicle: (1) view, compose, or send an electronic message, (2) engage other software applications, (3) or use a wireless device to speak to or listen to another person. The statute does not say that the person must be driving or that the vehicle needs to be in motion at the time of any of these activities. It merely states that the person performing these activities must be operating the vehicle. 

She composed the short message and she sent it electronically. Furthermore, she had been driving. She slowed down. The car was running. There is nothing in the facts to suggest that she ceased operating the car by pulling over, stopping completely, turning off the car, and removing the key from the ignition. 

Therefore, since the car was still running and in use, she composed and sent an electronic message while operating a motor vehicle. 


OUTLINE: Model Answer #4 – Cell Phone Q1 – Texting

IssueRuleAnalysisConclusion
1) wrote AND sent text message?



2) while driving?
WHILE operating a motor vehicle







Do any of:
1) view, compose, OR send an e-mess
2) engage other software apps
3) use wireless comm device to speak or listen to another person
–was driving–slowed down–not pull over–not stopped completely–not turn off the car–not remove key from ignition



typed + senttext   ———>








Yes




Yes, was operating









YES, composed and sent e-mess while operating a m/v

Model Answer #5 – Texting

The issue is whether April Jefferson violated the city ordinance prohibiting text messaging while driving her car.

Under the city ordinance, it is unlawful to use a wireless communication device to talk, listen to another person on the phone, view, send, or compose an electronic message, or to engage in other application software while operating a motor vehicle.

Here, April was driving her car when she was stopped by the police, alleging that she was texting. April sent a text to her friend while she was driving her car. In fact, she typed “almost there.” 

As prohibited by the ordinance, she committed a violation because she composed and sent an electronic message while operating a motor vehicle.

OUTLINE: Model Answer #5 – Cell Phone Q1 – Texting

IssueRuleAnalysisConclusion
violated city ordinance prohibiting texting?Violation =
use wireless comm device to
–talk or listen to another person on the phone
–view, send or compose and e-mess
–engage other app software
–WHILE operating a m/v









typed + senttext   




-while driving-was driving her car when stopped by police









Yes





Yes


YES, composed and sent e-mess while operating a m/v

MODEL ANSWER #6 – Texting

Jefferson violated the ordinance when she wrote and sent a text message to her friend while she was driving.

The issue is whether Jefferson was texting while driving.

The City Ordinance specifically bans sending text messages while “operating a motor vehicle.” 

Here, Jefferson sent her friend a text that she was “almost there” when she realized she was close to the restaurant where she was meeting her friend. Jefferson was still driving at the time and was not permitted to send that text message. Jefferson could have pulled over or waited until she arrived to text her friend. 

Thus, Jefferson violated the new law because she was driving while she typed and sent the text message. 

OUTLINE: Model Answer #6 – Cell Phone Q1 – Texting

IssueRuleAnalysisConclusion
Jeff texted while driving?Bans sending text message
–WHILE operating a m/v
–sent text message to friend
WHILE driving





YES, violated the law

MODEL ANSWER #7 – Texting

Jefferson likely violated the ordinance by texting her friend. 

The City Ordinance for Cell Phone Usage or Text Messaging provides that it is a moving violation and unlawful to use a wireless communication device to talk or listen to another person on the telephone or to view, send, or compose an electronic message or engage other application software while operating a motor vehicle. More specifically, the ordinance prohibits the driver from composing or sending an electronic message while operating a motor vehicle. 

Here, while waiting at a crosswalk, Jefferson picked up her cell phone, typed, and sent a message to her friend. She violated the letter of the law. Further, cities enacted such rules prohibiting texting while driving to prevent driver distractions. People are often involved in car accidents when they take their focus off the road while operating a car. Jefferson risked causing an accident by taking her eyes off the road and concentrating on her text message.

On the other hand, Jefferson will argue that she was not operating her car when she sent the text. In particular, she will maintain that she was stopped at the crosswalk (waiting for the children to cross the street) when she sent the text. She was not driving the car when she sent the text. Consequently, Jefferson will contend she did not violate the ordinance and she presented no danger to pedestrians or drivers.

Jefferson’s argument will likely fail given that her conduct violated not only the language of the rule but also the spirit behind anti-cell phone use rules. Even though she was stopped at the crosswalk, typing a text to her friend while in a car presented a distraction to her and risk to pedestrians and other drivers. Jefferson could have accidentally pulled her foot off the brake or hit the gas pedal. She would have been slow to react given that her attention was on the text message. 

Therefore, a court will likely find that she violated the City Ordinance for texting her friend while waiting at the crosswalk.

OUTLINE: Model Answer #7 – Cell Phone Q1 – Texting

IssueRuleAnalysisConclusion
Violation =
use wireless comm device to
–talk or listen to another person on the phone
–view, send or compose and e-mess
–engage other app software
–WHILE operating a m/v









picked up phonetyped + sentmessage



-could have taken foot off the brake and been a danger to pedestrians
Purpose of ordinance is safety – to prevent distractions that lead to accidents









Yes





Yes


YES, composed and sent e-mess while operating a m/v